EUROPEAN COMPETITION RULES AND
THE EUROPEAN COURT OF JUSTICE
Vivien Terrien1
Secretario jurídico del Tribunal de Justicia
de la Unión Europea

I. INTRODUCTION
Since the Court of Justice recognized the principles of direct effect
and of primacy and Regulation 1/2003 truly decentralized responsibilities in this field, national judges have become the main judges
in applying EU competition rules. At national level, some judges are
yet to improve their knowledge of the basics of EU competition law
despite the fact that they are, and will be, frequently called upon to
apply it. Others hold the key elements but may not be informed of the
latest developments. The keynote given on 22 October 2015 in Valencia aimed at targeting both categories of participants and to address
their varied needs and aspirations.

II. THE CJEU AS A SOURCE OF DECISIONS IN
COMPETITION LAW
To successfully navigate inside the plethora of competition law
decisions, national judges should, first, understand the EU judicial architecture to be able to identify both the decisional hierarchy and the
Référendaire in the cabinet of Mr. Jaeger, President of the General Court of the
European Union. This paper is based on the presentation delivered on 22 October 2015 in the framework of the Training for National Judges in EU Competition Law held at the Facultad de Derecho of Valencia. It reflects the situation at
that date. The author can be reached at vterrien@post.harvard.edu. All opinions
expressed are strictly personal and do not represent the views of the Court of
Justice of the European Union.

1

Vivien Terrien

importance of each type of litigation proceedings that may lead to the
adoption of a relevant judgment in this field. (A) Then, it seems essential to get a better idea of the activity of EU Courts in competition
law in terms of both quantity and trends affecting the production of
judicial decisions. (B) Finally, a brief indication regarding transparency as to the publication of decisions dealing with competition law
matters might be of interest for national judges seeking to obtain the
most precise information from EU authorities involved in administrative or judicial resolution of competition law cases. (C)

A. The CJEU in the European legal architecture
Before tackling the most recent development in the EU judicial architecture (i.e., the structural reform) (2) the current structure should
be briefly described (1).

1. The Current Structure
From 1952 to date, not only the Court of Justice has grown in
terms of members but also in terms of jurisdictions. At the beginning, at the time of the existence of the Court of Justice of the European Coal and Steel Community, no requirement was imposed
regarding judges nationality (composed of 7 judges and 2 Advocates
General). Further on, since 1959, the number of judges at the Court
of Justice of the European Union has been linked to the number of
Member States, each of them having the right to have one judge of
its nationality.
Today, the “Court of Justice of the European Union” is the name
of the institution composed of three jurisdictions: the “Court of Justice”, the “General Court” and the “Civil Service Tribunal”.
The Civil Service Tribunal, composed of 7 judges, deals with EU
staff cases and its decisions can be challenged on points of law before
the General Court. In turn, these appeal judgments may exceptionally
be subject to review by the Court of Justice where there is a serious
risk of the unity or consistency of Union law being affected. (Article
256§2 TFEU) The General Court, composed of 28 judges (one per
Member State), also delivers judgments at first instance. These decisions may be appealed before the Court of Justice, also composed of

European competition rules and the European Court of Justice

28 judges. In that regard, Art. 19 (2) TEU provides that “[t]he Court
of Justice shall consist of one judge from each Member State” whereas it specifies that “[t]he General Court shall include at least one judge
per Member State”. This difference is the key word that supports the
CJEU structural reform adopted last December.

2. The Structural Reform
To address the backlog issue and the increase of the workload at
the General Court level, the EU legislators (Council and Parliament)
found an agreement in December 2015 to double the number of judges, using the possibility to have more than one judge per Member
State in this jurisdiction. (a) Competition law proceedings may benefit
from this reform on at least two counts. (b)

a. Content
In March 2015, the General Court will welcome 12 new judges from Czech Republic, Sweden, Spain, Hungary, Poland, Cyprus,
Lithuania, Greece, Latvia, Luxembourg, Slovakia and Malta. In September 2016, the seven posts of judges at the Civil Service Tribunal
will be transferred to the General Court. This jurisdiction will thus
disappear and its competence transferred to the General Court, which
consequently means that the Court of Justice will become again an
appellate jurisdiction in this matter. The review procedure will therefore disappear as well. Finally, in 2019, another nine judges will join
the General Court bench.

b. Two possible consequences of the reform on competition cases
Duration of proceedings. One possible consequence of the structural reform that can be expected in the field of competition law
may be the reduction of the length of judicial proceedings in this
field.
In 2014, the duration of proceedings for all types of cases amounted to 23.4 months (judgment and order combined) and 28.4 months
(cases completed solely by judgments). However, figures are more
worrying when competition law cases are singled out. The average

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duration of proceedings when all types of competition cases completed by judgments are considered rises to 44.6 months, and when only
stricto sensu competition cases are examined it comes to 51.5 months.
Not only is this length of proceedings unsatisfactory from an objective point of view but it also leads to risks of action for damages
against the CJEU. Recently, the Court of Justice recognized in certain
instances that the procedure in the General Court breached the second paragraph of Article 47 of the Charter in that it failed to comply with the requirement that it adjudicate within a reasonable time
(see, for example, Cases C-50/12 P, Kendrion, C-58/12 P, Gascogne,
C-40/12 P Gascogne Deutschland). Actions for damages are now
submitted before the General Court, asking millions of euros to be
paid in compensation for such infringement (see, for instance, Case
T-673/15, Guardian Europe v European Union, lodged on November
19st 2015).
The structural reform, bringing more capacity to the General
Court, may allow this court to speed up its proceedings, benefiting
especially to competition cases, which suffer the most.
Specialization. Another possible consequence of the structural reform that can be expected in the field of competition law may be the
internal reorganization the General Court may undertake to introduce specialization for certain cases, leading to the creation of chambers dealing with specific competition law cases.
Cases at the General Court are not allocated based on any judgesâ&#x20AC;&#x2122;
specific expertise. All judges deal with all types of cases that may be
filed before this jurisdiction. Cases are allocated, in turn, to one of the
nine chambers, each composed of three judges, according to one of the
following three categories: (i) competition law and antidumping; (ii)
intellectual property; and (iii) others. The allocation process does not
take into account any linguistic capacity either. Therefore, the German
judge can work on German cases, French cases, Romanian cases, etcâ&#x20AC;Ś
This way of working is made possible owing to the fact that the working language of the Court of Justice of the European Union is French.
All documents are translated into this language before the judges start
working on a case. Since an application can be introduced in one of the
24 official languages, the judgment will be translated into the procedural language once finalized before being delivered.

European competition rules and the European Court of Justice

In 2014, the General Court mainly adopted its decisions in 3-judge
chamber (86% of the total completed cases), letting 5-judge chambers to be involved in a very small proportion of cases (2% of the
total completed cases) and not using at all the possibility to rule on a
single‑judge basis.
On 1 July 2015, the new rules of procedure of the General Court
entered into force. Article 25 (1) of the new rules of procedure provides that “(…) the General Court may make one or more Chambers responsible for hearing and determining cases in specific matters
(…)”. This provision may lead to a certain degree of specialization in
the future in the context of the increase of the number of judges. With
more capacity, more flexibility will be allowed in organizational terms
and it cannot be excluded that, also in order to avoid divergence between chambers, the Members of the General Court decide to reserve
some subject-matters to specific chambers.
However, one should note that the case allocation process at the
General Court allows the President to take into account potential
connexity between cases (and not only strict connexity, i.e., applications challenging the same act), i.e. applications raising the same type
of legal or factual issues, to designate the competent chamber. As a
result, a certain specialization is already in place.
The question of specialization at the General Court level should conduct observers to raise the same question with regard to the Court of
Justice, whose organization is not specialized. The 28 judges, assisted of
9 Advocates General since 7 October 2015, work in 5‑judge chambers
and most of the cases are adopted in this type of formation (47% of
total completed cases in 2014; 32% in chambers of 3 judges), making
use however of the possibility to rule in Grand Chamber (13 judges) for
the most important cases (7.5% of the total completed cases in 2014).
If specialization comes to the first instance but not at the appeal
level, one might wonder whether the effect of such modification will really impact in fine the EU case law. However, the case allocation process
at the Court of Justice allows some kind of specialization since, unlike
the General Court that allocates cases to chambers, this jurisdiction distributes cases to judges. Therefore, when some judges have developed
some kind of expertise in a subject-matter, this fact can be taken into
account for the allocation of similar cases in the future.

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B. The Production of decisions
What types of EU judicial decisions can provide national judges
with knowledge about the state of EU competition law? Two main
sources of judicial decisions regarding competition law should be
clearly identified: the preliminary ruling procedure and the action for
annulment.
Preliminary ruling. Through the first procedure, the Court of Justice
delivers decisions to answer a question raised by a national court as to
the validity or the interpretation of a EU legal instrument. The reference
for preliminary rulings mechanism should be viewed as a collaboration
procedure between the EU judges and the national judges. If currently
the Court of Justice is the sole court in charge of this procedure, it
should be noted that Article 256 (3) TFEU provides that “[t]he General
Court shall have jurisdiction to hear and determine questions referred
for a preliminary ruling in specific areas”. However, such specific areas
have not yet been identified by the Court of Justice and, consequently,
the competence to rule on references for preliminary rulings remains
the exclusive competence of the Court of Justice.
This type of decisions is particularly important for national judges
involved in competition law matters. First, the interpretation given
by the Court of Justice can go as far as concluding whether an agreement or provisions of a national legislation (see, for instance, Case
C‑345/14, Maxima Latvija, 26 November 2015) under review infringe EU competition law (see, for instance, Joined Cases C‑184208/13, API, 4 September 2014). Second, it can specifically address
practical issues such as the ones raised in the context of action for
damages where the Court of Justice tried to assist national courts
that had to decide on whether or not to order production of documents before the adoption of the Damage Claims Directive (see, Case
C-360/09, Pfleiderer, 14 June 2011; and Case C-536/11, Donau Chemie e.a., 6 June 2013).
Action for annulment. Through the second type of procedure,
the EU judges mainly deal with Commission’s decisions, whose legality is first challenged before the General Court on points of facts
and law and, sometimes, before the Court of Justice through the appeal procedure, limited to points of law. The judgment rendered on
appeal by the Court of Justice provides all stakeholders (individuals,

European competition rules and the European Court of Justice

companies, judges, etc.) with a definite answer as to the problems
raised in a specific case and also helps the Commission to provide
a clearer assistance when intervening as amicus curiae in national
proceedings.
For instance, in its Decision of 24 January 2007 adopted in Case
COMP/F/38.899 – Gas insulated switchgear, the Commission imposed fines totaling €750 712 500 on 20 companies for their participation in a cartel on the market for gas insulated switchgear.
However, in its judgment of 3 March 2011 adopted in Joined Cases
T-122/07 to T-124/07 Siemens Österreich and Others v Commission,
the General Court reduced the fines of certain members of the gas insulated switchgear cartel. Eventually, the Court in part found the appeals well-founded (Joined Cases C-231/11 P, C-232/11 P, C-233/11
P, Commission v Siemens Österreich and Others).
Therefore, in order to be informed on how EU competition law
issues are dealt with, national judges are well-advised to rely on Commission’s decisions until they are confirmed by a judgment from the
General Court and, as the case may be, by the Court of Justice on appeal. They also should not forget to look at decisions from the Court
of Justice adopted pursuant to a reference for preliminary ruling.

C. The Publication of decisions
Access to EU judicial decisions in competition law is rather facilitated by the EU Courts that publish most of their judgments on the
Court’s website (http: //www.curia.europa.eu).
The issue of transparency has recently been raised before the
Court, in Cases T-341/12, Degussa and T-345/12, Akzo Nobel, of 28
January 2015 as to the Commission’s decisions, and more specifically,
with regard to the willingness of this institution to publish more complete competition law decisions after a certain period of time than
the ones that were published after the adoption of the final decision.
The General Court decided in favor of a better access to information
indicating that the Commission enjoys a broad margin of discretion
in determining whether or not to publish information that was voluntarily submitted to it by undertakings in order to benefit from the
leniency programme.

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III. THE IMPORTANCE OF COMPETITION LAW IN EU
LITIGATION
Competition law cases represent an important share (B) of the
cases dealt with by the EU Courts (A) but recent data show that this
trend may be changing (C).

A. Overview
In 2014, the General Court achieved its best results ever in terms
of completed cases (814). However, it had to face a historic figure
regarding the number of new cases (912). Therefore, the number of
pending cases increased (1423 in 2014 compared to 1325 in 2013). In
contrast the Court received less new cases in 2014 (622) than in 2013
(699) and completed more cases in 2014 (719) than in 2013 (701).
These two results led to a decrease of pending cases (787 in 2014
compared to 884 in 2013).
Competition law cases represent roughly 15% of total completed
cases at the General Court whereas they amount to less than 10% of
total completed cases at the Court of Justice.

B. Focus on judgments re competition law
Activity of the EU Courts in competition law strictly speaking (i.e.,
without State aid cases) is better evaluated when only “judgments” are
taken into account (i.e., “orders” are disregarded). In volume, cartel
cases were the most important both at the General Court and at the
Court of Justice in 2014 (respectively, 37 cases and 17 cases). Only one
or two cases a year concern abuse of dominance or mergers. However,
volume should not be a key criterion here since these cases have been
subject to huge media coverage (e.g., the Intel case or the Microsoft
case).
Finally, as previously stated, one should note that source of competition cases at the Court of Justice can be decisions adopted pursuant
to reference for preliminary ruling (13 cases in 2014) and decisions
rendered on appeal (22 cases in 2014).

European competition rules and the European Court of Justice

C. Evolution: new cases from 2010 to 2014
At the General Court, the number of new stricto sensu competition cases has steadily decreased since 2010 (from 79 to 41 in 2014
– only 23 in 2013) whereas the number of new State aid cases has
greatly varied (from 42 in 2010 to 148 in 2014 – but 36 in 2012).
Most observers explain these trends by indicating, first, a structural reason as to the decrease of competition cases and, second, a
cyclical reason as to the variation of State aid cases. New stricto
sensu competition cases are rare nowadays probably due to the settlement procedure the Commission put in place in order to secure
from the sanctioned companies an abstention of judicial challenge
having in return a 10% discount on the amount of the fine. New
State aid cases depend on the crisis affecting certain sectors. For
instance, the failure of the banking sector or the mutation of the
energy sector has had a serious impact on the fantastic augmentation of cases in 2014.

IV. THE EXTENT OF CJEU’S JUDICIAL REVIEW IN
COMPETITION LAW
According to the treaty, competition law cases allow the judge at
the General Court to apply two types of standard of review depending on the part of the decision submitted to the judicial control: s/he
can exercise a legality review pursuant to Article 263 TFEU (A) and
his/her unlimited jurisdiction pursuant to Article 261 TFEU (B).

A. Legality review in competition law
Under the competence to review the legality of an EU act, the judge
can only annul —partially or wholly— the decision if s/he finds any
illegality with regard to EU law. The control is thus based on a decision previously adopted by an administrative body; the judicial action
does not purport to a retrial of the case. The legality review can be
divided into two standards of review: the comprehensive review (1)
and the limited review (2).

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1. “Comprehensive review”
When exercising his/her legality control, the EU judge has to review the contested decision fully and unrestrictedly as regards both
facts and points of law. This control applies to the external (a) and
internal legality (b) of the decision.

a. External legality
Among the external legality grounds that can be raised, lack of
competence is the most obvious. However, the most commonly argued remains infringement of essential procedural requirements, such
as respect of the rights of the defense during administrative procedure
or obligation to state reasons, ground that can be raised by the EU
judge of his/her own motion.
Illustrations of violation of the rights of the defense can be found
in access to file cases where the judge often has to examine whether or not the principle of contradictory was respected. Requests for
information sent by the Commission have recently been scrutinized
to ensure enough time for companies to answer sometimes burdensome questions (see, for instance, Case T-306/11, Schwenk Zement,
14 March 2014). Inspection decisions also have been under the EU
judge’s radar seeking fairness between the official purpose of the inspection and the instructions given to the officials on premises (see,
for instance, Case C‑583/13 P, Deutsche Bahn, 18 June 2015).

b. Internal legality
According to settled case law, where the Court is faced with an
application for the annulment of a decision applying Article 101 (1)
TFEU, it undertakes a comprehensive review generally of the question whether or not the conditions for the application of Article 101
(1) TFEU are met. In other words, the EU judge has to examine all
aspects of the infringement, with no exception.
Obviously, EU judges will seek errors in law covering wrongful application or interpretation of relevant rules but also inaccurate assessment of facts. For instance, this can happen when reviewing whether
or not the Commission was right to qualify the alleged infringement

European competition rules and the European Court of Justice

as a concerted practice (e.g., see Case C-286/13 P, Dole Food, 19
March 2015), or as a continued infringement (e.g., see Case T-655/11,
FSL, 16 June 2015), or when the aggravating circumstance of recidivism is sufficiently substantiated (e.g., see Case C-93/13 P, Commission/Versalis, 5 March 2015).
Identifying errors in facts is also part of the EU judge’s tasks at
the General Court, sole and unique EU jurisdiction reviewing facts
and points of law in competition law cases. Accordingly s/he has the
duty to review the facts and the assessments of the evidence, keeping
in mind the in dubio pro reo principle applies in EU law. Examination of evidence brought to justify the duration of an infringement is
regularly conducted at the General Court level (e.g., see Case T-58/01,
Solvay, 17 December 2009) or of proofs to demonstrate an aggravating circumstance, such as the proof that one of the cartelists took
the lead in perpetrating the infringement (e.g., see Case T-29/05 Deltafina, 8 September 2010).

2. “Marginal review”
In its Joined Cases 56 and 58/64, Consten and Grundig [1966],
the Court of Justice affirmed that “[a] judicial review of the Commission’s complex evaluations on economic matters must take into
account their nature by confining itself to an examination of the relevance of facts and of the legal consequences with the Commission
deduces therefrom”. The concept of “marginal review” was born.
Paying respect to the Treaty, the judge recognized that, in such situations, s/he had to refrain from substituting his/her own assessment for
the Commission’s when the latter exercises its margin of discretion
that it enjoys by definition because of its role.
Therefore, in such situations, the EU judge considered that s/he
had to apply a restricted or limited review or, in other words, limits
his/her control solely to the manifest error of appreciation.
Taking its roots in agreement/cartel cases, it was rapidly extended
to merger control and abuse of dominance cases.
However, contrary to many comments, the recognition of the
Commission’s margin of discretion and, consequently, the existence
of a marginal review, does not mean the abandonment of judicial

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control in this type of situation. As the Court of Justice specified in its
Tetra Laval case (C-12/03 P, 15 February 2005): “[w]hilst the Court
recognises that the Commission has a margin of discretion with regard to economic matters, that does not mean that the EU Courts
must refrain from reviewing the Commission’s interpretation of information of an economic nature”.
When applying the marginal standard of review, the EU judge still
must establish that the evidence used is factually accurate, reliable
and consistent and determine that the evidence contains all the relevant data to be taken into account to assess complex situation and
is capable of substantiating the conclusions drawn from it (see, for
instance, Case T‑201/04, Microsoft I, 17 September 2007). Moreover,
the judge cannot use Commission’s discretion as a basis for dispensing with the conduct of an in-depth review of the law and the facts
(Case C‑272/09 P, KME, 8 December 2011).
In fact, the application of marginal review did not lead to a marginalization of the judge in judicial control of Commission’s decisions
relying on economic assessments. The most striking example, and
probably the most known as well, is the three annulments of Commission’s decisions prohibiting three different operations in 2002 (Case
T-342/99, Airtours, 6 June 2002, Case T-310/01, Schneider Electric,
22 October 2002, Case T-5/02, Tetra Laval, 25 October 2002). These
judgments led to the modification of the internal structure of the Commission Directorate General for Competition, where a Merger Task
Force was created, a Chief Competition Economist was appointed
and the “More Economic Approach” was implemented.
Case law in the merger field gives many more examples of the indepth review the EU judge exercises despite the application of marginal review. For instance, one can recall the Impala saga where the
Commission authorized an operation in Case COMP/M.3333 – Sony/
BMG on 19 July 2004 that was later annulled by the General Court in
its Case T-464/04, Impala/Commission on 13 July 2006. On 3 October 2007, the Commission adopted a new decision authorizing again
the operation (Case COMP/M.3333 – Sony/BMG). Less than a year
after, the Court of Justice adopted its judgment on appeal of the 2004
General Court’s judgment, annulled it and referred the case to the
General Court (Case C‑413/06 P, Bertelsmann and Sony/Impala, 10

European competition rules and the European Court of Justice

June 2008). Moreover, at the end of the summer 2008, the Commission authorized a new operation (Case COMP/M.5272 – Sony/Sony
BMG, 15 September 2008). On 30 September 2009, both actions –
the one following the Court of Justice appeal judgment and a new
action for annulment against the authorization of the new operation
were dismissed (respectively, Case T-464/04, Impala/Commission,
and Case T-229/08, Impala/Commission).
More recently, the Ryanair Case (T-342/07, 6 July 2010), upholding the Commission’s decision in Case COMP/M.4439 that prohibited the merger between Ryanair and Aer lingus, or the Deutsche Börse
Case (T-175/12, 9 March 2015), upholding the Commission’s decision in Case No COMP/M.6166 that prohibited the merger between
Deutsche Börse/NYSE Euronext, could be mentioned as example of,
for the former, in-depth review of econometrics studies, and, for the
latter, in-depth review of relevant market definition, efficiency gains
and commitments.
By nature, EU judges are confronted with economic assessments in
decisions regarding abuse of dominance. In these situations, despite
the application of the marginal standard of review, judicial control
remains strict. For instance, in Case T-427/08, CEAHR, of 15 December 2010, the General Court reviewed in-depth the relevant market
definition conducted by the Commission and, eventually, annulled
the contested decision. In this decision, the Commission rejected a
complaint brought by watch repairers against manufacturers, who
allegedly were refusing to supply spare parts to independent repairers, and thus, were abusing their dominant position. However, the
Commission considered that, in this complaint, there was a lack of
Community interest due to the fact that the market was of limited size
and economic importance. Moreover, it considered that repair services and spare parts were not in the same market due to the existence
of a market for luxury watches. In its judgment, the General Court
recognized that market definition triggers limited standard of review
because of complex economic assessments that have to be conducted.
Nevertheless, the judges recalled that the Commission’s discretion in
dealing with complaints is not unlimited and they have to examine in
detail all reasons put forward by the Commission to justify its decision. It then concluded that the Commission committed a manifest

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error of assessment. This strict scrutiny led thus to the annulment of
the Commission’s decision.
Marginal review is not a standard of review limited to complex
economic assessments but depends on the existence of some discretion
in the assessments of the Commission. Therefore, the EU judge recognized that, when confronted with complex technical assessments,
such standard of review is applicable. In Case T-201/04, Microsoft
I, of 17 September 2007, s/he nevertheless reviewed in-depth the relevant market definition. This judgment, which essentially upheld the
Commission’s decision of 23 March 2004 imposing a fine of more
than €497 M for an abuse of dominant position consisting in tying
Windows Media Player (“WMP”) with Windows PC operating system (“Windows”) and an obligation to sell Windows without WMP,
was not appealed before the Court of Justice. However, the Court of
Justice upheld this approach as to complex technical assessment in its
Case C-457/10 P, AstraZeneca, of 6 December 2012, adopted on appeal of the General Court’s judgment in Case T-321/05, AstraZeneca,
of 1 July 2010.
If marginal review is thus far from being synonymous of putting
judicial control aside, two observations must however be made. First,
the Court of Justice, once in a while, reminds the General Court of
the importance of applying such standard of review that should not
fade out into a general comprehensive standard of review. In its appellate judgment of 29 June 2010 adopted in Case C-441/07 P, Commission/Alrosa, the Court of Justice annulled the General Court’s
judgment that previously annulled the Commission’s decision in Case
COMP/38.381 – De Beers (Case T-170/06, Alrosa/Commission, 11
July 2007) underlining that “the General Court put forward its own
assessment of complex economic circumstances and thus substituted
its own assessment for that of the Commission, thereby encroaching
on the discretion enjoyed by the Commission instead of reviewing
the lawfulness of its assessment”. Second, the on-going issue of the
relevance of an effect-based approach in abuse of dominance cases
may have an influence on the frequency of application of the marginal
standard of review. For instance, the General Court dismissed in its
entirety the microchip manufacturer Intel’s action against the Commission’s decision of 13 May 2009 imposing the highest fine ever on a
single company (€1.06 billion) for an abuse of dominant position on

European competition rules and the European Court of Justice

the worldwide market for x86 central processing units (CPU) consisting, inter alia, of conducting a strategy aimed at foreclosing the only
serious competitor, AMD (Case T-286/09, Intel Corp. v. Commission,
12 June 2014), and ordering immediate end to the infringement. In
this judgment, the General Court considered that the violation constituted a by-object infringement and, thus, no effect-based approach
was necessary. This decision is currently under appeal based, inter
alia, on the ground that the General Court applied a wrong legal
standard (Case C-413/14 P, pending). If an effect-based approach is
favored, economic assessments will become more relevant to justify
the Commission’s decision and, thus, the marginal standard of review
will be even more applied.
This specific standard of review is not absent from cartel cases either. In Case T‑452/05, Belgian Sewing Thread, of 28 April 2010, the
General Court decided that “in assessing the cooperation given by
members of a cartel, only a manifest error of assessment on the part
of the Commission is open to censure, since the Commission enjoys a broad discretion in assessing the quality and usefulness of the
cooperation provided by an undertaking, especially in comparison
with the contributions made by other undertakings”. Accordingly,
one could presuppose that marginal review also applies to complex
factual assessments. However, in Cases C‑272/09 P KME Germany,
C‑386/10 P Chalkor, C‑389/10 P KME Germany, of 8 December
2011, the Court of Justice stressed that “[i]n carrying out [the review of legality], the Courts cannot use the Commission’s margin
of discretion —either as regards the choice of factors taken into
account in the application of the criteria mentioned in the Guidelines or as regards the assessment of those factors— as a basis for
dispensing with the conduct of an in-depth review of the law and of
the facts”.
To sum up, it seems that marginal review is applicable when the
EU judge is confronted with complex economic assessments, complex technical assessments and complex factual assessments. However, it should be kept in mind that the term “complex” does not
mean “difficult” but rather reveals the existence of policy choices —
belonging to the administration (i.e., the Commission)— for which
the judge should careful in not substituting his/her own assessment.